Ram Janam Ram Yadav vs State of U.P.& Ors.

D. S. Sinha, J.—Heard Shri M.D. Singh, learned Counsel appearing for the petitioner, Shri Vinay Malviya, learned Standing Counsel and Shri Vivek Chaudhary, learned Counsel appearing for the respondents.

The petitioner is employed in the Excise Department of the State of Uttar Pradesh as Statistician on which post he was initially appointed on adhoc basis on 23rd October, 1972 and was confirmed with effect from 1st January 1981. His grievance raised before this Court is that he was denied promotion to the post of Office Superintendent four times during the period between 1984 and October,

It is not disputed that the service conditions of the petitioner are regulated by Uttar Pradesh Excise Department Ministerial Service Rules, 1980, here in after called the 1980 Rules, as amended by the Uttar Pradesh Excise Department Ministerial Service (First Amendment) Rules, 1991, here in after referred to as 1991 Rules, which came into force on 2nd November, 1991.

The promotion to the post of Superintendent under the 1980 Rules was by promotion from amongst the permanent Statistician, Senior Auditor, Accountant and in case of non availability of suitable persons for promotion, the field of eligibility could be extended to include permanent Assistant Superintendent. In case no suitable Assistant Superintendent was available for promotion recruitment could be made from amongst the permanent Noters and Drafters. Thus, by virtue of being permanent Statistician the petitioner was eligible for consideration for promotion to the post of Superintendent.

The reason for nonconsideration of the case of the petitioner for promotion as given in the counteraffidavit filed on behalf of the Excise Department is that with effect from llth August, 1983 the post of Office Superintendent was meant to be filled by the incumbents belonging to clerical cadre. The Statisticians had been excluded from the clerical cadre and were included in the Accounts cadre. This assertion is disputed by the petitioner.

It is not necessary to examine the correctness of the rival contentions as even if the case of the petitioner regarding his claim for consideration for promotion to the post of Office Superintendent is accepted to be correct, the Court may not be in a position to repair the resultant injury after the lapse of several years, specially in view of the fact that each time petitioner was allegedly excluded from consideration for promotion he acquiesced the same and never challenged before any appropriate forum.

Now question arises whether the petitioner can now be considered for promotion if and when any occasion arises for promotion to the post of Office Superintendent or to the post of Senior Administrative Officer, a post now created in lieu of post of Office Superintendent. A perusal of the provisions of 1991 Rules reveals that post of Superintendent for which the petitioner asserts to have been entitled for consideration has been abolished and new post of Administrative Officer has been created with effect from 2nd November, 1991. According to the 1991 Rules the post of Administrative Officer is to be filled by promotion from amongst the substantively appointed Office Superintendent GradeII and if suitable number of Office Superintendent GradeII are not available for promotion, the field of eligibility may be extended to include such substantively appointed Senior Assistants who have completed ten years of service as such on the first day of the year of the recruitment. The Statisticians do not find place in the category of persons eligible for promotion to the post of Administrative Officer. The petitioner being Statistician is clearly not eligible for promotion to the post of Senior Administrative Officer in view of the 1991 Rules.

Otherwise also, there is no data before the Court regarding the existence of vacancy/vacancies on the post of Administrative Officer. Thus, even if the petitioner is, by any stretch of imagination, taken to be eligible for consideration for promotion to the post of Senior Administrative Officer no direction in this regard can be given by the Court.

To buttress the claim of promotion of the petitioner to the post of Senior Administrative Officer, learned Counsel for the petitioner places reliance on the decision of the Hon''ble Supreme Court rendered in YV Rangaiah and others v. v. Sreenivasa Rao and others, (1983) 3 SCC at page 284. The court has carefully scrutinised the facts and dictum of the said case and has not been able to find there in anything which may lend support to the case of the petitioner. In that case Hon''ble Supreme Court was considering the claim against the vacancies of a particular year and in that context it said that if employees were eligible for promotion against the vacancies of the given year then they would be eligible for consideration for promotion against those vacancies even though vacancies were to be filled in the subsequent year and even if rules regarding the recruitment had been changed in the meantime. In the instant case, claim is not with regard to the vacancy of any particular year before 1991 Rules came into force.

All told, the writ petition, in the opinion of the Court, is devoid of substance.

In the result, the petition fails and is here by dismissed. No order as to costs.